Gregory v. Denham

Filing 13

ORDER denying 6 Ex Parte & Sua Sponte Motion for 'Jurisdictional Challenge,' 7 Ex Parte Motion to Strike the Magistrate Judge's Order of August 18, 2014 Pursuant to F.R.Cv.P. Rule 12(f), 8 Ex Parte Applicant's Objection to Order of August 18, 2014 Directing Applicant to File Amended Application Pursuant to 28 U.S.C. § 636(b)(1)(A), and 9 Ex Parte Injured Party Pleading to Deem This Case Complex, by Judge Lewis T. Babcock on 9/5/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02183-BNB
JOHNNY BRETT GREGORY,
Applicant,
v.
DEBORAH DENHAM, Warden - FCI Englewood,
Respondent.

ORDER

This matter is before the Court on the following four documents: “Ex Parte & Sua
Sponte Motion for ‘Jurisdictional Challenge’” (ECF No. 6); “Ex Parte Motion to Strike the
Magistrate Judge’s Order of August 18, 2014 Pursuant to F.R.Cv.P. Rule 12(f)” (ECF
No. 7); “Ex Parte Applicant’s Objection to Order of August 18, 2014 Directing Applicant
to File Amended Application Pursuant to 28 U.S.C. § 636(b)(1)(A)” (ECF No. 8); and “Ex
Parte Injured Party Pleading to Deem This Case Complex” (ECF No. 9). The
documents were filed pro se by Applicant, Johnny Brett Gregory, on August 27, 2014.
The Court construes the documents collectively as objections to Magistrate Judge
Boland’s Order Directing Applicant to File Amended Application (ECF No. 5) dated
August 18, 2014. For the reasons discussed below, the objections will be overruled.
Mr. Gregory initiated this action by filing pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) claiming his constitutional
rights have been violated in connection with two disciplinary convictions. On August 18,

2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 5) directing Mr.
Gregory to file an amended application if he wishes to pursue his habeas corpus claims
in this action. In the order to amend, Magistrate Judge Boland determined that the
habeas application was deficient because the claims failed to comply with Fed. R. Civ.
P. 8 and the Rules Governing § 2254 Cases in the United States District Courts.
Mr. Gregory objects to Magistrate Judge Boland’s order for numerous reasons.
First, Mr. Gregory argues that because he has “claimed his Constitutional rights had
been violated in connection with two disciplinary convictions, Mr. Gregory should not be
ordered to file an amended application.” He also asserts that Magistrate Judge Boland
misapplied Fed. R. Civ. P. 8, wrongfully relied on the Rules Governing § 2254 Cases,
and acted as an advocate for Respondent. In short, Mr. Gregory argues that he “has
presented his claims in a very manageable and readable format, that allows this court
through a Art. III Judge’s eyes and Respondent including Non-party at fault to know
what claims are being asserted and to be able to respond to the factual claims . . .
including State of Colorado’s Statute 13-21-111.5 C.R.S. claim for Non-party at fault
damages, including the specific rights that factally [sic] have been violated and the
Specific acts of each non-party at fault, that violated Mr gregorys rights to own property.
(i.e., U.C.C. Caveat), giving all the different venues a long chronological recitation of
facts is required, due to this being a more complex case.”
Second, Mr. Gregory contends that Magistrate Judge Boland incorrectly
construed the 66-pages of attachments “as a basis of this habeas corpus standing
alone” rather than “as a pleading in pendent state law claim.” Mr. Gregory requests
that the Court exercise jurisdiction over the pendent state claim for “non-party at fault
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damages” against individual prison officials who are not parties to this habeas action.
Third, Mr. Gregory claims that Magistrate Judge Boland did not follow the rules
pursuant to 28 U.S.C. § 2243 by not issuing an order directing Respondent to show
cause why the writ should not be granted. Fourth, he requests that the Court strike
Magistrate Judge Boland’s order because it is insufficient pursuant to Fed. R. Civ. P.
12(f). Finally, Mr. Gregory asks that the Court “deem this case ‘complex.’”
Pursuant to 28 U.S.C. § 636(b)(1)(A) a judge may reconsider any pretrial matter
designated to a magistrate judge to hear and determine where it has been shown that
the magistrate judge’s order is clearly erroneous or contrary to law. The Court has
reviewed the file and finds that Magistrate Judge Boland’s order dated August 18
directing Mr. Gregory to file an amended application is not clearly erroneous or contrary
to law.
Mr. Gregory asserts that his allegations that his constitutional rights have been
violated satisfy the pleading requirements of Fed. R. Civ. P. 8, and that the Rules
Governing § 2254 Cases in the United States District Courts do not apply to his § 2241
Application. The Federal Rules of Civil Procedure apply to applications for habeas
corpus relief. See Fed. R. Civ. P. 81(a)(2); Browder v. Director, Dep’t of Corrections,
434 U.S. 257, 269 (1978); Ewing v. Rodgers, 826 F.2d 967, 969-70 (10th Cir. 1987).
Pursuant to Fed. R. Civ. P. 8(a), a pleading “must contain (1) a short and plain
statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain statement
of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief
sought.” Fed. R. Civ. P. 8(d)(1) provides that “[e]ach allegation must be simple,
concise, and direct.” Taken together, Rules 8(a) and (d)(1) underscore the emphasis
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placed on clarity and brevity by the federal pleading rules. Prolix, vague, or
unintelligible pleadings violate the requirements of Rule 8. Mr. Gregory’s Application
consists of seventy-pages of text interspersed with prison incident reports, state court
orders, and other documents. His allegations are not “simple, concise, and direct,” and
he does not provide a “short and plain statement of [each] claim showing that” he is
entitled to relief. Fed. R. Civ. P. 8(a) & (d)(1). Mr. Gregory’s claims are unnecessarily
verbose and confusing.
Moreover, the Rules Governing § 2254 Cases in the United States District Court
applies to this habeas corpus action pursuant to § 2241. “A prime purpose of Rule
2(c)’s demand that habeas petitioners plead with particularity is to assist the district
court in determining whether the State should be ordered to ‘show cause why the writ
should not be granted.’” Mayle v. Felix, 545 U.S. 644, 656 (2005) (quoting 28 U.S.C. §
2243). Accordingly, naked allegations of constitutional violations are not cognizable in a
habeas corpus action. See Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (per
curiam). Therefore, Mr. Gregory’s objections that his allegations of constitutional
violations are sufficient will be overruled and he will be required to file an amended
application if he wishes to pursue his claims in this action.
Mr. Gregory also objects to the order to amend contending that Magistrate Judge
Boland misconstrued his second exhibit “as a basis of this habeas corpus standing
alone” rather than “as a pleading in pendent state law claim” against non-parties at fault.
He asserts that it is proper to bring his “pendent state law claim” for damages in the
habeas action and that this Court has jurisdiction over this claim. Magistrate Judge
Boland plainly did not err in informing Mr. Gregory that he may not assert claims for
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damages against individual prison officials in this habeas action. See Licon v.
Ledezma, 638 F.3d 1303, 1311 (10th Cir. 2011) (habeas corpus is limited to challenges
to “the execution of a sentence”); and cf. Muhammad v. Close, 540 U.S. 749, 750
(2004) (habeas corpus is not meant to provide compensation for the “circumstances of
confinement”). Moreover, claims of state law violations are not cognizable in a federal
habeas action. See 28 U.S.C. §§ 2241(c)(3); see also Montez v. McKinna, 208 F.3d
862, 865 (10th Cir. 2000). Accordingly, Mr. Gregory’s objections concerning Magistrate
Judge Boland’s determination that this Court lacks jurisdiction over his state law claim
for non-party at fault damages are overruled.
Next, Mr. Gregory objects that Magistrate Judge Boland failed to follow 28 U.S.C.
§ 2243 by not issuing to Respondent an order to show cause why the writ should not be
granted. The United States Supreme Court has noted that “Congress has provided that
once a petition for a writ of habeas corpus is filed, unless the court is of the opinion that
the petitioner is not entitled to an order to show cause, . . . an order to show cause must
be issued.” Harris v. Nelson, 394 U.S. 286, 298-99 (1969) (emphasis added); see also
Kilgore v. Attorney Gen. Of Colorado, 519 F.3d 1084, 1087 (10th Cir. 2008)
(acknowledging that the AEDPA provides for preliminary judicial screening of habeas
petitions); Thompson v. True, 156 F.3d 1244 (10th Cir. 1998) (rejecting prisoner’s
argument on appeal that district court ignored supposed mandate of 28 U.S.C. § 2243
that orders to show cause issue to respondents in all habeas actions because § 2243
provides that a court must issue an order to show cause “unless it appears from the
application that the applicant or person detained is not entitled thereto”). Therefore, this
objection also will be overruled.
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Mr. Gregory also asks that this Court strike Magistrate Judge Boland’s order as
“insufficient” pursuant to Fed. R. Civ. P. 12(f) because the order attempted “to remove
Mr. Gregory’s designated Non-party at fault that meets the statutory requirements of
Colo. Rev. Stat. § 13-21-111.5(3)(b).” As noted above, this argument is without merit,
the motion to strike is denied, and this objection is overruled. Accordingly, it is
ORDERED that Mr. Gregory’s objections are OVERRULED and the Ex Parte &
Sua Sponte Motion for ‘Jurisdictional Challenge’” (ECF No. 6); “Ex Parte Motion to
Strike the Magistrate Judge’s Order of August 18, 2014 Pursuant to F.R.Cv.P. Rule
12(f)” (ECF No. 7); “Ex Parte Applicant’s Objection to Order of August 18, 2014
Directing Applicant to File Amended Application Pursuant to 28 U.S.C. § 636(b)(1)(A)”
(ECF No. 8); and “Ex Parte Injured Party Pleading to Deem This Case Complex” (ECF
No. 9) are DENIED. It is
FURTHER ORDERED that Mr. Gregory shall have thirty (30) days from the date
of this order to file an amended application that complies with the directives of the Order
Directing Applicant to File Amended Application (ECF No. 5) dated August 18, 2014. If
Mr. Gregory fails to do so within the time allowed, the action may be dismissed without
further notice.
DATED at Denver, Colorado, this 5th day of

September

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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, 2014.